Many attorneys can overlook favorable clauses to include in separation agreements for a variety of reasons. Much time, negotiations, and effort goes into the settlement agreement, and often clients are in a hurry to strike while the iron is hot and have the agreement speedily prepared in order to assure that it will be signed and completed without further delay. Although this motive is commendable, speed can lead to overlooking favorable clauses that should be included in order to protect your best interests
For example, if you are the monied spouse and wish to have finality incorporated into the agreement, a good way to do so is to include a clause that will provide that if in the future, a lawsuit is later brought to set aside its terms, then counsel fees will be awarded for your successful defense of such a lawsuit. Without this clause the courts are without power to award a counsel fee, since normally, in the absence of a specific statute (law) that provides for fees, they are not awarded. Since an action to set aside a settlement agreement is not considered a matrimonial action, which permits legal fees to be granted in the prosecution or defense of a divorce case, there is no statutory predicate to award a fee to defend a lawsuit for recision
Such a favorable clause will deter lawsuits that are either frivolous or have little or no merit, and save you extensive legal fees in defending them.
